NOTICE-DISCRETIONARY JURIS (DIRECT CONFLICT).pdf

e:l I],) 0... < 4-< 0 t ;:s 0 u IN THE DISTRICT COURT OF APPEAL OF FLORIDA FOURTH DISTRICT CASE NO. 4Dl4-2282 BRADLEY J. EDWARDS, Appellant, V. JEFFREY EPSTEIN, Appellee. I ----------------- NOTICE TO INVOKE DISCRETIONARY JURISDICTION NOTICE IS GIVEN that the appellee, Jeffrey Epstein, invokes the discretionary jurisdiction of the Supreme Court of Florida to review the decision of this Court rendered November 12, 2015. The decision is within the discretionary jurisdiction of the Supreme Court of Florida because it expressly and directly conflicts with a decision of another district court of appeal or the supreme court on the same question oflaw and certifies conflict with Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013). Respectfully submitted, LAW OFFICES OF PAUL MORRIS, P.A. 9350 S. Dixie Highway Suite 1450 Miami, FL 33156 Florida Bar No. 193769 Tel. (305) 670-1441 Fax (305) 670-2202 paulappeal@gmail.com paul@paulmorrislaw.com sl Paul Morris PAUL MORRIS Counsel for Appellee CERTIFICATE OF SERVICE I hereby certify that on this 10th day of December, 2015, a copy of the foregoing was emailed to those on the list below. SERVICE LIST: William B. King Searcy Denny Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Blvd. West Palm Beach, FL 33409 wbk@searcylaw.com Philip M. Burlington Burlington & Rockenbach, P.A. Courthouse Commons/Suite 350 444 W. Railroad Avenue West Palm Beach, FL 33401 pmb@FLAppellateLaw.com kbt@FLAppellateLaw.com Tonja Haddad Coleman Tonja Haddad Coleman, P.A. 5315 SE 7th Street Suite 301 s/ Paul Morris -2- Fort Lauderdale, FL 33301 tonj a@tonjahaddad.com jayme@tonjahaddad.com Bradley J. Edwards Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. 425 N. Andrews Ave., Ste. 2 Ft. Lauderdale, FL 33301 brad@pathtojustice.com Fred Haddad Fred Haddad, P.A. 1 Financial Plaza, Ste. 2612 Ft. Lauderdale, FL 33301 haddadfm@aol.com Mark Nurik Law Offices of Mark S. Nurik 1 E. Broward Blvd., Ste. 700 Ft. Lauderdale, FL 33301 marc@nuriklaw.com Jack Goldberger Atterbury, Goldberger & Weiss, P.A. 250 S. Australian Ave., Ste. 1400 West Palm Beach, FL 33401 jgoldberger@agwpa.com W. Chester Brewer, Jr. W. Chester Brewer, Jr., P.A. 250 S. Australian Ave., Suite 1400 West Palm Beach, FL 33401 wcblaw@aol.com wcbdiane@yahoo.com -3- DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT BRADLEY J. EDWARDS, Appellant, V. JEFFREY EPSTEIN and SCOTT ROTHSTEIN, Appellees. No. 4D14-2282 [November 12, 2015] Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Donald W. Hafele, Judge; L.T. Case No. 502009CA040800XXXXMB. Philip M. Burlington of Burlington & Rockenbach, P.A., and William B. King of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, for appellant. Paul Morris of The Law Offices of Paul Morris, P.A., Miami, and Tonja Haddad Coleman of Tonja Haddad, PA, Fort Lauderdale, for appellee Jeffrey Epstein. WARNER, J. Appellant challenges a summary judgment holding that his malicious prosecution claim against appellee Epstein was barred by the litigation privilege. The trial court granted summary judgment based upon Wolfe v. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013), which had decided this issue just before the motion for summary judgment was heard. 1 However, after the trial court ruled, our court held to the contrary in Fischer v. Debrincat, 169 So. 3d 1204, 1209 (Fla. 4th DCA 2015), and certified conflict with Wolfe to the supreme court. See also Rivemider v. Meyer, 174 So. 3d 602, 604 (Fla. 4th DCA 2015) (same). As the issue is the same in this case, we hold that the litigation privilege does not bar a malicious prosecution 1 The trial court properly relied on Wolfe at the time, because that case was binding upon the trial court in the absence of interdistrict conflict. See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992). cause of action where all the elements of malicious prosecution are present. Epstein suggests that this case could be decided on a tipsy coachman analysis, as he alleges that all the elements of the cause of action were not present. However, the trial court specifically found that material issues of fact remained as to the elements of the claim. Based upon the facts presented and the inferences which may be drawn from those facts, we will not disturb the trial court's evaluation. Just as in Fischer and Rivemider, we certify that this opinion conflicts with Wolfe. Reversed and remanded for further proceedings. TAYLOR and FORST, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 2 DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT BRADLEY J. EDWARDS, Appellant, V. JEFFREY EPSTEIN and SCOTT ROTHSTEIN, Appellees. No. 4D14-2282 [November 12, 2015] Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Donald W. Hafele, Judge; L.T. Case No. 502009CA040800XXXXMB. Philip M. Burlington of Burlington & Rockenbach, P.A., and William B. King of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, for appellant. Paul Morris of The Law Offices of Paul Morris, P.A., Miami, and Tonja Haddad Coleman of Tonja Haddad, PA, Fort Lauderdale, for appellee Jeffrey Epstein. WARNER, J. Appellant challenges a summary judgment holding that his malicious prosecution claim against appellee Epstein was barred by the litigation privilege. The trial court granted summary judgment based upon Wolfe u. Foreman, 128 So. 3d 67 (Fla. 3d DCA 2013), which had decided this issue just before the motion for summary judgment was heard. 1 However, after the trial court ruled, our court held to the contrary in Fischer u. Debrincat, 169 So. 3d 1204, 1209 (Fla. 4th DCA 2015), and certified conflict with Wolfe to the supreme court. See also Rivemider u. Meyer, 174 So. 3d 602, 604 (Fla. 4th DCA 2015) (same). As the issue is the same in this case, we hold that the litigation privilege does not bar a malicious prosecution 1 The trial court properly relied on Wolfe at the time, because that case was binding upon the trial court in the absence of interdistrict conflict. See Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992). cause of action where all the elements of malicious prosecution are present. Epstein suggests that this case could be decided on a tipsy coachman analysis, as he alleges that all the elements of the cause of action were not present. However, the trial court specifically found that material issues of fact remained as to the elements of the claim. Based upon the facts presented and the inferences which may be drawn from those facts, we will not disturb the trial court's evaluation. Just as in Fischer and Rivemider, we certify that this opinion conflicts with Wolfe. Reversed and remanded for further proceedings. TAYLOR and FORST, JJ., concur. * * * Not final until disposition of timely filed motion for rehearing. 2 I hereby cert